State ex rel. Ohio Civil Rights Commission v. Gunn

• Court: Ohio Supreme Court
• Writing for the Court: HERBERT; C. WILLIAM O'NEILL
• Citation: State ex rel. Ohio Civil Rights Commission v. Gunn, 344 N.E.2d 327, 45 Ohio St.2d 262, 74 O.O.2d 422 (Ohio 1976)
• Decision Date: 17 March 1976
• Docket Number: No. 75-541,75-541
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1399, 12 Empl. Prac. Dec. P 10,987, 74 O.O.2d 422 The STATE ex rel. OHIO CIVIL RIGHTS COMMISSION, Appellee, v. GUNN, Appellant.

Page 262

45 Ohio St.2d 262

344 N.E.2d 327, 16 Fair Empl.Prac.Cas. (BNA) 1399,

12 Empl. Prac. Dec. P 10,987, 74 O.O.2d 422

The STATE ex rel. OHIO CIVIL RIGHTS COMMISSION, Appellee, v. GUNN, Appellant.

No. 75-541.

Supreme Court of Ohio.

March 17, 1976.

Syllabus by the Court

Upon refusal to obey a subpoena duces tecum issued by the Civil Rights Commission, the commission may petition the Court of Common Pleas for summary enforcement of the subpoena, pursuant to R.C. 4112.04(B)(6), without filing a complaint or causing issuance of summons.

In October 1973, Michael Goodman, an employee of Roadway Express, Inc. filed a charge wtih the Ohio Civil Rights Commission, alleging that Roadway had engaged in unlawful discriminatory practices by disqualifying him for weekend work.

During the investigation, the commission issued a subpoena duces tecum to appellant, Daniel M. Gunn, Roadway's Vice-President of Employee and Labor Relations, demanding the production of attendance records and time cards for Goodman and two other employees of Roadway, covering a two month period in 1973, and the bid sheets for all weekends during this time period.

Roadway filed a petition with the commission to revoke the subpoena, contending that it did not relate to any matter before the commission and that compliance would be unduly onerous. The petition was denied and, because of continued noncompliance by appellant, the commission filed a petition to enforce the subpoena in the Court of Common Pleas.

After determining that the Rules of Civil Procedure were applicable, the court found that the commission had not caused issuance of a summons to appellant and dismissed the petition.

The Court of Appeals held that R.C. 4112.04(B)(6) allows for summary enforcement of commission subpoenas, and reversed and remanded the cause to the trial court to issue a show cause order without a summons.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

William J. Brown, Atty. Gen., Andrew J. Ruzicho, Earl M. Manz, and Gene W. Holliker, Columbus, for appellee.

Buckingham, Doolittle & Burroughs, Edward C. Kaminski and David H. Shaffer, Akron, for appellant.

HERBERT, Justice.

Appellant contends that a proceeding to enforce a subpoena duces tecum issued by the Civil Rights Commission, pursuant to R.C. 4112.04(B)(6), is governed by the Rules of Civil Procedure and, therefore, must be commenced by the filing of a complaint and issuance of summons.

R.C. 4112.04(B)(6) states:

'In case of contumacy or refusal to obey a subpoena, the commission or person at whose request it was issued may petition for its enforcement in the court of common pleas in the county in which the person to whom the subpoena was addressed resides, was served, or transacts business.'

The scope of the Civil Rules is found in Civ.R. 1, which provides, in subsection (A):

'These rules prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law or in equity, with the exceptions stated in subdivision (C) of this rule.'

Subsection (C) states:

'These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (7) in all other special statutory proceeding * * *.'

We agree with the view of both lower courts that an action to enforce a subpoena duces tecum under R.C. 4112.04(B)(6) constitutes a 'special statutory proceeding' within the meaning of Civ.R. 1(C)(7). Hence, our inquiry must focus upon whether the nature of such an action renders the Civil Rules 'clearly inapplicable.'

In Sudahy Packing Co. v. National Labor Relations Board (C.A. 10, 1941), 117 F.2d 692, the NLRB had obtained an order from the district court compelling compliance with a subpoena duces tecum it issued to Cudahy. ¹ On appeal, Dudahy asserted that the suit to enforce the subpoena must be initiated by the filing of a complaint and issuance of process; however, the court rejected that argument and stated at page 694:

'The company's contention that a suit to enforce obedience to a subpoena must be begun by the filing of a complaint and issuance of process if not borne out by the act. The act specifically provides that upon refusal to obey a subpoena the Board may file an application with the proper District Court and thereupon the court shall have jurisdiction to issue to such person an order requiring him to appear before the Board and to produce evidence touching the matter under investigation or in question.'

In Goodyear Tire & Rubber Co. v. National Labor Relations Board (C.A. 6, 1941), 122 F.2d 450, 451, the court stated:

'* * * We agree with the district court that the proceedings plainly are of a summary nature not requiring the issuance of process, hearing, findings of fact, and the elaborate process of a civil suit. * * *

'* * * Obviously, if the enforcement of valid subpoenas, the issuance of which is a mere incident in a case, were to require all of the formalities of a civil suit, the administrative work of the Board might often be subject to great delay.'

The concern of the Goodyear court regarding delay was reiterated by the Supreme Court of Colorado in People v. District Court (1968), 164 Colo. 385, 435 P.2d 374. There, after the state Commissioner of Agriculture obtained a court order directing compliance with a subpoena, the order was quashed because of the commissioner's failure to file a complaint and issue process. ² In finding that the order to quash was erroneous, the court noted that an enforcement proceeding under the statute was not independent judicial proceeding, but was merely ancillary to the prior issuance of a subpoena by the commissioner and, at page 392, 435 P.2d at page 377, stated:

'* * * Our study of C.R.S.1963, 7-3-19(3) convinces us that the legislature did not intend to make a so-called 'federal case' out of the effort of * * * (the commissioner) to get an order of court that Tepper comply with its subpoena. To the contrary, in our view, by the very language it used the legislature intended that the procedure should be rather summary in nature. Certainly, if * * * (the commissioner's) request is to be treated in all respects as an ordinary civil proceeding, a recalcitrant witness, such as Tepper, could, as he has, slow down to a virtual standstill the operation of this particluar administrative agency by taking advantage of the law's well known delay. If the legislature intended that such proceeding was to be handled as just another civil proceeding, it could have said so. But it did not, and from the language of the statute itself, it is apparent to us that the legislature intended to provide a smiplified procedure for the judicial enforcement of administrative subpoenas.'

In the case at bar, the commission's position is buttressed by the provisions of Civ.R. 1(B) and R.C....